Home | Databases | WorldLII | Search | Feedback Court of Appeal of Solomon Islands

Solomon Islands National Union of Workers v Russell Islands Plantation Estates Ltd [2011] SBCA 20; CA-CAC 6 of 2011 (25 November 2011)

JUDGMENT OF THE COURT

1. The appeal before the Court concerns an order of Goldsbrough J on 22nd March 2011 assessing and awarding compensation pursuant to section 10 of the Trade Disputes Act (Cap. 75) ("the Act"), to Russell Plantations Estates Limited ("Russell") against the Solomon Islands National Union of Workers ("the Union") for unlawful strike action in contravention of the Act in continuing with the strike following reference of a dispute to the Trade Union Panel ("the Panel"). The Union began the strike as long ago as 17th June 2004, and continued it for some years.
   
2. Goldsbrough J's assessment of compensation, which was of $7,303,480, was in respect of an order of Brown J in favour of Russell over six years earlier, on 7th October 2004, proceedings in which the Union did not appear and was not represented, despite due service. Brown J, by his order had 1) declared the strike to be unlawful under the Act; 2) restrained the Union from continuing with it pending the making of an award by the Panel; and 3) ordered the Union to compensate Russell for loss caused by the strike:
   

"... for its losses suffered, to be assessed, as a result of their contravention of section ... 10 ..."

3. On 19th November 2004, following a two-day contested hearing in which both parties were represented, Brown J, exercising the jurisdiction then given to him by Order 13 and 29, rule 12 of the 1964 High Court (Civil Procedure) Rules, to determine whether to set aside his orders of 7th October 2004, dismissed an application by the Union made on 14th October 2004 to set aside those orders.
   
4. In the meantime, the Union and its members, in breach of Brown J's orders of 7th October 2004, had continued their unlawful strike action. During and since that period they progressively took control of Russell's properties in the Russell Islands, causing serious damage and much financial loss by looting, destruction, arson and other criminal acts. They also prevented – and continue to this day to do so - Russell's management from access to its premises and, more generally, from operating its business in the Islands. On 10th November 2004 Russell dismissed the striking Union members.
   
5. The matter next came before the courts some nine months later, on 27th July 2005, when the Court of Appeal clearly declined an application by the Union for it to set aside Brown J's orders of 7th October 2004, but observed that the High Court had power to vary them and directed their remission to the High Court for further consideration after the Panel hearing, then scheduled for August 2011, or as High Court might direct.
   
6. On 28th October 2005 the Panel made its award in the form of two recommendations for settlement of the dispute, first for reinstatement of certain employees dismissed by Russell and secondly for termination of the employment of its general manager, recommendations that Russell then challenged unsuccessfully in separate litigation.
   
7. However, notwithstanding the Court of Appeal's pointer towards the possibility of variation as an alternative to setting aside Brown J' orders, the Union did nothing for over four years to seek either. That long delay prompted Russell, in September 2009, to apply:
   
   1. to strike-out, for want of prosecution, the Union's five-year old application of 14th October 2004 to Brown J to set aside his orders of 7th October 2004 (and dismissed by him on 19th November 2004) and for him to act on the Court of Appeal's directions of 27th July 2005 remitting the matter to the High Court with a view to their possible variation; and
      
   2. an up-to-date award of damages for the Union's continuing unlawful strike action of $70,378,053 for destruction of property, and 248,048,752, loss of revenue, those figures all or in the main including claims for loss post Brown J's order of 7th October 2004.
      
8. As indicated, Goldsbrough J, on 22nd March 2011, assessed and awarded damages to Russell in the sum of $7,304,480 as compensation for its losses up to the date of Brown J's award on 7th October 2004. In doing so, he clearly regarded the Union as having abandoned its attempt to set aside Brown J's orders or to treat it as standing dismissed. This is how he put it, at paragraph 12 of his judgment:
   

"It is regrettable that the ... [the Union] did not take up the offer made to them by the Court of Appeal. That offer for review of the order by the High Court was acknowledged in this assessment hearing by counsel for ... Union] and it was noted that they had indeed taken no action upon it. Having taken no action and not seeking further time to do so, [the Union] leave themselves open to this assessment."

9. It is not surprising that Goldsbrough J took that course, given the Union's long delays and its failure to object to either of Russell's applications or even to dispute the pre 7th October 2004 figure claimed, as Mr Marahare as acknowledged in his submissions to this Court and recorded by Goldsbrough J in paragraph 5 of his judgment:
   

"The first tranche of damages claimed relates to the period 17 June to 7 October 2004. The first date is the referral to the Trade Disputes Panel and the second date on which this present order was perfected. Those damages are $7,304,480.00 and the evidence on which that figure is arrived at is not disputed by counsel for the defendants."

10. The Union appeals against Goldsbrough J's exercise of assessment maintaining that:
    
    1. its application in October 2004 to set aside Brown J's orders remained a live issue because, notwithstanding the Court of Appeal's remission of the matter to the High Court in 2005, the application remained unresolved; alternatively
       
    2. if Goldsbrough J's assessment under challenge amounted effectively to a strike-out of its October 2004 application, it did not conform with the Civil Procedure Rules 2007 or otherwise with the law; and, in any event was unreasoned or inadequately reasoned; and
       
    3. he erred in his assessment of compensation at $7,303,480 for the period up to 7th October 2004.
       
11. Russell has cross-appealed, seeking an increase in Goldsbrough J's assessment by a further sum of about $179,000,000 for damages in respect of the period following Brown J's order to date, and an unspecified figure by way of general damages for continuing loss occasioned by the Union's continued illegal occupation of Russell's plantations and destruction of property and assets.
    
12. The first issue for the Court on the appeal is whether Goldsbrough J's assessment of 22nd March 2011 of Brown J's order of compensation to Russell of 7th October 2004 was without jurisdiction or otherwise flawed because the High Court has not yet acted on the Court of Appeal's remission to it in June 2005 of the Union's set-aside application of November 2004, coupled with its indication that the High Court could vary Brown J's order.
    
13. Mr Marahare, for the Union, has submitted that Goldsbrough J wrongly confined himself to the subject of the proceeding before him, assessment of damages on Brown J's 7th October 2004 order, and did not consider the Court of Appeal's remission of the matter to the High Court in June 2005 and the Union's live though dormant set-aside application since then. Alternatively, he suggested that, if Goldsbrough J's order amounted to a dismissal of the Union's October 2004 set-aside application, it was unlawful for want of compliance with the Civil Procedure Rules or otherwise and for want of reasons.
    
14. There is no substance or merit in any of those challenges. As Mr. Sullivan QC for Russell has pointed out, the Union has never challenged Brown J's rulings in making his 7th October 2004 order that its strike was unlawful, that it had been properly referred to the Trade Disputes Panel or that the order of compensation to be assessed had been validly made under section 10 of the Act. And, as we have indicated in this judgment, the Union, which had the carriage of its November 2004 application to set aside Brown J's 7th October 2004 order, did nothing to put the matter back before the High Court either to re-open its set-aside application or for its variation. So much was acknowledged by counsel then acting on its behalf before Goldsbrough J. Even when, four years later in September 2009, Russell coupled its application for assessment of compensation with an application to strike out the Union's set-aside application, giving rise to Goldsbrough J's assessment in March 2011, the Union did not re-instate its application for consideration of the High Court.
    
15. By any standards that long-standing inaction was a failure to satisfy the second limb, if not the first, of the well-known principles of culpable delay laid down by the English Court of Appeal in Birkett v James ... If the Union had sought to challenge the strike-out part of Russell's application of September 2009 – which it did not - the only proper exercise by Goldsbrough J in the exercise of his discretion would have been so to find. Although Mr Marahare, in argument before the Court, sought to rely on the intervening Trade Disputes Panel proceedings, the issues in play in those proceedings had no bearing on the issue of compensation for unlawful strike action at the heart of these proceedings.
    
16. In addition, as is plain from Goldsbrough J's judgment and confirmed by Mr Marahare to this Court, that here was no such objection at the hearing to the Judge nor any dispute by counsel on its behalf of Russell's evidence as to the amount claimed for the period before and up to the date of Brown J's order. It is plain that, in the absence of any such objection, the Union and he were at one in proceeding on the basis that it was no longer effectively before him as an issue. It already stood dismissed by Brown J in his order of 19th October 2004, an order that the Union had done nothing to disturb following the remission of the matter back to the High Court in July 2005.
    
17. It follows that Rule 23(3) of the Civil Procedure Rules, requiring an applicant for a default order to plead and evidence details of non-compliance, on which Mr Marahare relied, was not engaged. Even if it had been, the description by Russell in paragraph 1 of its September 2009 strike-out application were sufficient, namely the Union's "want of prosecution" in respect of its "failure to comply with the directions of the Court of Appeal made on 27th July 2005", that is, to go back to the High Court. Given the Union's failure to do that or anything else to progress its challenge to Brown J's order of 7th October 2004, no more particularity was required.
    
18. The Union's reasons challenge to Goldsbrough J's decision to proceed with assessment of Brown J's compensation order of 7th October is equally misconceived. Both parties were proceeding on that issue before him that the Union's six-year old set-aside application in respect of Brown J's order of 7th October was no longer in play. Otherwise, how could the Union's then counsel have allowed the Judge to make the assessment without challenging his jurisdiction to do so? It might have been tidier if Goldsbrough J had expressly recorded his understanding that the set-aside application already stood dismissed by Brown J without any further order, or had declared it to be so by consent. But the reality was that there was no issue about it before him. Why should he have been required to give reasons for such an understanding or implicit decision when it was common ground between two legally represented parties that he was entitled to embark on the assessment and, moreover, that there was no dispute on the relevant figure?
    
19. As to Mr Marahare's third ground of appeal that the Judge erred in his assessment of damages, his complaint in argument to this Court was of the Judge's acceptance that all the asserted loss flowed from industrial rather than some other form of action. No such issue was raised by counsel instructed for the Union before Goldsbrough J in relation to the only damages before him with which he was properly concerned, namely the damages incurred by unlawful industrial action of the Union and its members before and up to his order of 7th October 2004. This was described by Brown J in his order of 7th October 2004, as "losses suffered, to be assessed, as a result of their contravention of sections 10(1) and 10(2)". As we have stated, there was no dispute before him as to classification or quantum of that compensation. In paragraph 5 of his judgment.
    
20. The remaining heads of damage, as Goldsbrough J pointed out in paragraph 6 of his judgment, related to loss and damage incurred after the date of Brown J's order, in respect of which there was an issue before him as to whether Russell, in the light of recommendations made the Trade Disputes Panel, should have mitigated its loss. As is apparent there had been was no such or any issue as to the compensation to be awarded up to the date of Brown J's order. He held, as a matter of construction of the order that it did not include any provision for what were at its date, future losses, and, therefore, did not fall to be assessed by him.
    
21. Russell, by its cross-appeal, argues that Goldsbrough J wrongly failed to construe Brown J's 7th October 2011 order as covering all future properly recoverable damage as at the date of the order. Mr Sullivan sought to support that contention by an analysis and construction of Brown J's wording in the order and also by reference to the general principle of recoverability applicable to all present and future losses for torts and statutory wrongs. We mean no disrespect to his detailed contentions in rejecting those submissions fairly summarily. We read Brown J's meaning in his order as plainly referring only to the statutory losses that Russell had suffered from the Union's unlawful industrial action to the date of his order. Whilst theoretically, if Russell's claim had been sufficiently widely pleaded and proved, he could, in October 2004 have endeavoured to identify all future losses of whatever nature sounding in damages caught by the Trade Disputes Act and the general law, he did not do so – wisely, in our view – and carefully limited the ambit of his order to statutory compensation to the date of his order.
    
22. For the above reasons and those carefully expressed by Goldsbrough J in paragraphs 6 to 10 of his judgment, the cross-appeal falls to be dismissed. It follows that any issue as to mitigation of damages going to the post 7th October 2004 period will, like the recoverability of such damages itself whether disputed or undisputed; fall for future attention in some other proceedings.
    
23. Accordingly, both the appeal and the cross-appeal are dismissed.
    
24. Certification for Queens counsel and costs
    

Sir Robin Auld
President

Justice Gordon Ward
Member

Justice Francis Mwanesalua
Member